City admits open meeting law violation : Lawsuit by News-Press owner sought to keep public's business in plain view of the public

October 29, 2008 07:19 AM

SCOTT STEEPLETON, NEWS-PRESS ASSOCIATE EDITOR

In a victory for the public's right to know how government conducts its business, Ampersand Publishing LLC, which owns the News-Press, won a judgment against the city of Santa Barbara in a lawsuit over violations of state open meeting laws.

The suit was filed in response to a November 2007 meeting of the Transportation and Circulation Committee in which members discussed and strategized the closing of De la Guerra Plaza even though there was no such item on the agenda.

Ampersand attorney A. Barry Cappello argued that members of the committee, an advisory body to the City Council, violated the 1953 Ralph M. Brown Act, which guarantees the public's right to take part in local government meetings, governs public notification of meetings and what will be discussed at those meetings, and limits closed-door meetings of government bodies.

Defendants in the case were committee members David Tabor and William Boyd, whose terms end Dec. 31, and David Pritchett, whose term ends Dec. 31, 2010.

In a judgment agreed to by both sides and filed Tuesday with Santa Barbara County Superior Court Judge James W. Brown, the city admits the violation took place and agrees to "comply with all public noticing and public hearing requirements of the Brown Act" when it comes to redevelopment of the plaza.

City officials also agreed to give the court jurisdiction to enforce the order.

"Any future violations and we go right in to court on an order of contempt," said Mr. Cappello.

The city issued a press release calling what happened at that November meeting a technical violation, adding that the settlement was intended to save money.

"There is no such thing as a technical violation of the Brown Act," said Mr. Cappello. "Open meeting laws need to be strictly adhered to."

That didn't happen on Nov. 8, 2007, and the News-Press was not about to let the city get away with it, he added.

And Mr. Cappello noted that it wasn't until after attempts by the city to quash the lawsuit failed that officials decided to save the taxpayers' money.

The paper, said Mr. Cappello, intends to continue monitoring government agencies of interest to ensure they keep the public fully informed "before they act, not after as was the case in this violation."

He said all local members of the press need to be more vigilant, understand the Brown Act and hold government officials accountable for the public's right to know.

As part of the judgment, both sides will pay their own attorneys' fees.

Civil penalties for violating the Brown Act include voiding any action taken in violation of the Act. In the case of the Transportation and Circulation Committee, no action was taken.

If a member of a body knowingly violates the Act to deprive the public of information the public is entitled to, the district attorney may seek misdemeanor penalties.

Santa Barbara's Redevelopment Agency filed the application to close the plaza to parking and traffic -- an issue the paper has reported on in its news section and taken a stand against in its editorial pages.

Not long after the TCC meeting a year ago, Ampersand wrote the city attorney alleging the violation and demanding it stop.

That letter apparently went unanswered, prompting the lawsuit.

The city tried to block Ampersand from proceeding with the lawsuit and in a hearing before Judge Brown earlier this year, the City Attorney's office argued that legal remedy to violations of the Brown Act extend only to "past actions and violations that are related to present or future ones."

But Judge Brown didn't agree.

In June, he said the suit could go forward because the issue of closing the plaza -- located at the News-Press' front door -- is not over.

"The court may presume that the practice (Ampersand) alleges violates the Brown Act will continue and the past action is, therefore, related to present or future actions," he said at the time.

But City Attorney Steve Wiley contended that claims of possible Brown Act violations could not be raised unless the person or entity bringing the claim can show individual prejudice.

In his June order, Judge Brown said that if prejudice were required to move forward with a complaint over violations occurring during a review process, "no one would ever be able to seek such relief until after an adverse decision were made."

"Certainly newspapers," Judge Brown's order states, "would never be in a position to allege prejudice other than the inability to report on government deliberations."

The judge said it is not necessary to allege prejudice to bring such an action.

He noted that Ampersand is in a unique position: ". . .it is both an adjacent property owner with a direct interest in what happens to the Plaza, and it owns a newspaper that has an interest in reporting on city government deliberations."

In either position, Judge Brown said at the time, Ampersand "has an interest in the process of reviewing the proposed Plaza project."

And Mr. Cappello said that interest includes ensuring that plans for the plaza see the light of day.

"The News-Press will continue to fight for people's right to know and prevent secretive tactics by any government officials," he said.